Com. v. Terantino, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD TERANTINO
Appellant No. 2311 EDA 2014
Appeal from the Judgment of Sentence May 30, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001848-2013
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED APRIL 14, 2015
Appellant Edward Terantino appeals from the judgment of sentence
entered in the Monroe County Court of Common Pleas following his jury trial
convictions for involuntary deviate sexual intercourse, persons less than 16
years of age, statutory sexual assault, and aggravated indecent assault,
persons less than 16 years of age.1 We affirm Appellant’s convictions, but
vacate his judgment of sentence and remand for resentencing.
The relevant facts and procedural history of this appeal are as follows.
In June 1998, then forty-six-year-old Appellant sexually assaulted his then
fourteen-year-old step-daughter (“Victim”). Police became aware of this
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S §§ 3123(a)(7), 3122.1, 3125(8), respectively.
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assault when they arrested Appellant for kidnapping Victim in September
2013. On March 13, 2014, the court conducted a jury trial for the 1998
incident.
At trial, Carol Haupt, the owner of Forensic Counseling Associates,
testified as an expert witness in the field of victim responses to sexual
abuse. Before Haupt testified, Appellant objected to Haupt’s qualifications to
testify as an expert in this field. The Commonwealth and Appellant
questioned Haupt as to her qualifications outside of the presence of the jury.
The court accepted Haupt as an expert in the field of victim responses to
sexual abuse “[b]ased on the witness’s testimony and [the court’s] review of
her curriculum vitae[.]” N.T., 3/13/14, at 46.
Haupt, who specializes in treating perpetrators and victims of domestic
violence and sexual assault, testified that: “Most victims don’t report for a
very long time if ever” due to “shame, fear, embarrassment, thinking they
may get in trouble themselves, not knowing who to tell, being afraid that
they won’t be believed. The list goes on and on. It’s a little different for
every victim as to their reason for not disclosing.” N.T., 3/13/14, at 49-50.
Haupt did not testify specifically about Victim because she never met Victim.
Appellant made no objections to Haupt’s testimony.
On March 13, 2014, the jury convicted Appellant of the
aforementioned charges. On May 30, 2014, the court sentenced Appellant
to 5-10 years’ incarceration for involuntary deviate sexual intercourse,
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persons less than 16 years of age,2 2-4 years of concurrent incarceration for
aggravated indecent assault, persons less than 16 years of age, and a
consecutive sentence of 4-8 years’ incarceration for kidnapping, resulting in
an aggregate sentence of 9-18 years’ incarceration.3
On June 9, 2014, Appellant filed a post-sentence motion which the
court denied on July 1, 2014. On July 30, 2014, Appellant timely filed a
notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.
1925.
Appellant raises the following issue for our review:
WHETHER THE TRIAL COURT ERRED BY ALLOWING
EXPERT TESTIMONY CONCERNING “VICTIM RESPONSES
TO SEXUAL ABUSE” TO BOLSTER [THE] CREDIBILITY OF
THE WITNESS[?]
Appellant’s Brief, p. 5.
Appellant argues the court erred by allowing Haupt to testify as an
expert in the field of victim responses to sexual abuse. Appellant complains
the Commonwealth presented Haupt’s testimony for the sole purpose of
bolstering Victim’s testimony. He claims the issue of victim response to
sexual abuse is a matter of common knowledge, not distinctly related to a
science, skill, or occupation beyond the knowledge or experience of the
____________________________________________
2
The court sentenced Appellant to the mandatory minimum for his offense,
pursuant to 42 Pa.C.S. § 9718.
3
Appellant’s statutory sexual assault charge merged for sentencing
purposes.
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average layman; thus, Haupt’s testimony was inadmissible, and he is
entitled to a new trial without this prejudicial evidence. We disagree.
Initially, Appellant waived this claim by failing to object to the
substance of Haupt’s testimony during trial. See Commonwealth v.
Hairston, 84 A.3d 657, 667 (Pa.2014) cert. denied sub nom. Hairston v.
Pennsylvania, ___ U.S. ___, 135 S.Ct. 164, 190 L. Ed. 2d 118 (2014) (lack
of timely objection waived issue for appellate review). Although Appellant
objected to Haupt’s qualifications as an expert, he did not object to Haupt’s
testimony on the grounds that it enhanced Victim’s credibility.
Even if Appellant had preserved this issue for appeal, it warrants no
relief. 42 Pa.C.S. § 5920 provides the line of demarcation between
admissible and inadmissible expert testimony: an expert “may testify to
facts and opinions regarding specific types of victim responses and victim
behaviors,” but shall not provide “opinion[s] regarding the credibility of any
other witness, including the victim.” 42 Pa.C.S. § 5920(b)(2), (3).
Here, Haupt testified as to possible reasons victims might not disclose
prior sexual abuse but did not opine upon the credibility of any witness at
Appellant’s trial. Accordingly, she testified within the parameters of the
statute.
We now consider the legality of Appellant’s mandatory minimum
sentence under 42 Pa.C.S. § 9718. Although Appellant did not raise any
issue related to the legality of his sentence, we note that questions
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regarding the legality of a sentence “are not waivable and may be raised sua
sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118
(Pa.Super.2013) (en banc), appeal denied, 95 A.3d 277 (Pa.2014). Further,
we note that issues regarding the Supreme Court of the United States’
decision in Alleyne v. United States, __ U.S. __, 133 S.Ct 2151, 186 L.Ed
2d 341 (2013), directly implicate the legality of the sentence.
Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).
Our standard of review of questions involving the legality of a sentence
is as follows:
A challenge to the legality of a sentence…may be
entertained as long as the reviewing court has jurisdiction.
It is also well-established that if no statutory authorization
exists for a particular sentence, that sentence is illegal and
subject to correction. An illegal sentence must be vacated.
Issues relating to the legality of a sentence are questions
of law. Our standard of review over such questions is de
novo and our scope of review is plenary.
Wolfe, 106 A.3d at 801-02 (citations omitted).
In this case, Appellant was sentenced under the following statute:
§ 9718. Sentences for offenses against infant
persons
(a) Mandatory sentence.--
(1) A person convicted of the following offenses when
the victim is less than 16 years of age shall be
sentenced to a mandatory term of imprisonment as
follows:
18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated
assault)--not less than two years.
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18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating
to rape)--not less than ten years.
18 Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse)--not less than ten years.
18 Pa.C.S. § 3125(a)(1) through (6) (relating to
aggravated indecent assault)--not less than five years.
* * *
(c) Proof at sentencing.--The provisions of this section
shall not be an element of the crime, and notice of the
provisions of this section to the defendant shall not be
required prior to conviction, but reasonable notice of the
Commonwealth’s intention to proceed under this section
shall be provided after conviction and before sentencing.
The applicability of this section shall be determined at
sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth and
the defendant an opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.
42 Pa.C.S. § 9718.
In Alleyne, the Supreme Court of the United States held that the Due
Process Clause of the Constitution of the United States requires each factor
that increases a mandatory minimum sentence to be submitted to a jury and
found beyond a reasonable doubt. Alleyne, supra at 2163. Based upon
Alleyne, this Court stated in dicta in Watley that sections 7508 and 9712.1
of the Sentencing Code are unconstitutional insofar as they permit a judge
to automatically increase a defendant’s sentence based on a preponderance
of the evidence standard for factors other than a prior conviction. Watley,
supra at 117 n. 4.
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In Commonwealth v. Newman, following our dicta in Watley, we
held that the preponderance of the evidence standard in section 9712.1(c) is
unconstitutional under Alleyne. Newman, 99 A.3d 86 (Pa.Super.2014) (en
banc). We then addressed whether it was possible to continue enforcing the
remaining subsections of section 9712.1 after severing subsection (c). We
held that section 9712.1, as a whole, was no longer workable, because
subsection (c) was “essentially and inseparably connected” with the
mandatory minimum sentencing provision in subsection (a). Id. at 101. We
cited several trial court opinions on this subject, most notably the following
analysis by the Montgomery County Court of Common Pleas:
While the Commonwealth clearly is correct that
unconstitutional provisions of a statute may be severed in
order to effectuate the legislature’s intent in enacting that
statute, the undersigned believes that this simply is not
possible in the instant situation, where the constitutional
and unconstitutional provisions of the mandatory minimum
statutes are inextricably interwoven. In order to effectuate
the legislature’s intent for the imposition of mandatory
minimum sentences, the Commonwealth would have us
ignore the legislature’s clear intent: that the factors
triggering such sentences be found by a judge and not a
jury; that the defendant need not be informed of the
applicability of the mandatory sentence prior to
sentencing; and that the applicable standard be one of
preponderance of the evidence. The undersigned believes
it is for the legislature, and not this court, to make such
determinations. Further, and crucially, rather than asking
this court simply to ‘sever’ unconstitutional provisions
within the statutes, the Commonwealth is essentially
asking this court to rewrite them, by imposing different
burdens of proof and notification than the legislature
imposed.
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Id. at 103 (citing Commonwealth v. Brockington, et al. (CCP
Montgomery Cty., March 21, 2014)). Accordingly, in Newman, we vacated
the defendant’s judgment of sentence and remanded for resentencing
“without consideration of any mandatory minimum sentence provided by
section 9712.1.” Id. at 103.
More recently, this Court specifically analyzed 42 Pa.C.S. § 9718 in
Wolfe. We recognized that section 9718 contained the same format as
section 9712.1, the statute struck down as unconstitutional in Newman.
Wolfe, 106 A.3d at 805. We therefore determined that section 9718 was
unconstitutional, vacated the judgment of sentence, and remanded the case
for resentencing without application of the section 9718 mandatory
minimum. Id. at 806.
Pursuant to Wolfe, because the trial court sentenced Appellant under
the unconstitutional provision of section 9718, we must vacate Appellant’s
judgment of sentence and remand for resentencing without application of
section 9718.
Convictions affirmed. Judgment of sentence vacated; case remanded
for resentencing. Jurisdiction is relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/14/2015
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